[Congressional Record: June 9, 2009 (Senate)]
[Page S6359-S6361]
TORTURE
Mr. WHITEHOUSE. Mr. President, I wish to now change the subject and
speak about an incident that is not part of anybody's proud heritage
and that is the evidence we have recently heard about America's descent
into torture. I know it is an awkward subject to talk about, an awkward
subject to think about. On the one hand, we, as Americans, love our
country, we hate the violence that has been done to us, and we want
more than anything to protect our people from attacks. On the other
hand, torture is wrong and we have known it and behaved accordingly in
far worse circumstances than now.
When Washington's troops hid in the snows of Valley Forge from a
superior British force bent on their destruction, we did not torture.
When our capital city was occupied and our Capitol burned by troops of
the world's greatest naval power, we did not torture. When Nazi powers
threatened our freedom in one hemisphere and Japanese aircraft
destroyed much of our Pacific fleet in the other, we did not torture.
Indeed, even when Americans took arms against Americans in our bloody
Civil War, we did not torture.
I know this is not easy. Our instincts to protect our country are set
against our historic principles and our knowledge of right versus
wrong. It is all made more difficult by how much that is untrue, how
much that is misleading, and how much that is irrelevant have crowded
into this discussion. It is hard enough to address this issue without
being ensnared in a welter of deception.
To try to clarify it, I wish to say a few things. The first is that I
see three issues we need to grapple with. The first is the torture
itself: What did Americans do? In what conditions of humanity and
hygiene were the techniques applied? With what intensity and duration?
Are our preconceptions about what was done based on the sanitized
descriptions of techniques justified? Or was the actuality far worse?
Were the carefully described predicates for the torture techniques and
the limitations on their use followed in practice? Or did the torture
exceed the predicates and bounds of the Office of Legal Counsel
opinions?
We do know this. We do know that Director Panetta of the CIA recently
filed an affidavit in a U.S. Federal court saying this:
These descriptions--
He is referring to descriptions of EITs--enhanced interrogation
techniques--the torture techniques.
He says in his sworn affidavit:
These descriptions, however, are of EITs as applied in
actual operations and are of a qualitatively different nature
than the EIT descriptions in the abstract contained in the
OLC memoranda.
The words ``as applied'' and ``in the abstract'' are emphasized in
the text.
These descriptions, however, are of EITs as applied in
actual operations and are of a qualitatively different nature
than the EIT descriptions in the abstract contained in the
OLC memoranda.
The questions go on: What was the role of private contractors? Why
did they need to be involved? And did their peculiar motivations
influence what was done? Ultimately, was it successful? Did it generate
the immediately actionable intelligence protecting America from
immediate threats that it had been sold as producing? How did the
torture techniques stack up against professional interrogation?
Well, that is a significant array of questions all on its own, and we
intend to answer them in the Senate Intelligence Committee under the
leadership of Chairman Feinstein, expanding on work already done,
thanks to the
[[Page S6360]]
previous leadership of Chairman Rockefeller.
There is another set of questions around how this was allowed to
happen. When one knows that America has over and over prosecuted
waterboarding, both as crime and as war crime; when one knows that the
Reagan Department of Justice convicted and imprisoned a Texas sheriff
for waterboarding prisoners; when one sees no mention of this history
in the lengthy opinions of the Office of Legal Counsel at DOJ that
cleared the waterboarding--no mention whatsoever; when assertions of
fact made in those OLC opinions prove to be not only false but provably
false from open source information available at the time; when one
reads Chairman Levin's excellent Armed Services Committee reports on
what happened at the Department of Defense, it is hard not to wonder
what went wrong. Was a fix put in? And, if so, how? A lot of damage was
done within the American institutions of government to allow this to
happen.
If American democracy is important, damage to her institutions is
important and needs to be understood. Much of this damage was done to
one of America's greatest institutions--the U.S. Department of Justice.
I am confident the Judiciary Committee, under Chairman Leahy's
leadership, will assure that we understand and repair that damage and
protect America against it ever happening again.
Finally--and I am very sorry to say this--but there has been a
campaign of falsehood about this whole sorry episode. It has disserved
the American public. As I said earlier, facing up to the questions of
our use of torture is hard enough. It is worse when people are misled
and don't know the whole truth and so can't form an informed opinion
and instead quarrel over irrelevancies and false premises. Much
debunking of falsehood remains to be done but cannot be done now
because the accurate and complete information is classified.
From open source and released information, here are some of the
falsehoods that have been already debunked. I will warn you the record
is bad, and the presumption of truth that executive officials and
agencies should ordinarily enjoy is now hard to justify. We have been
misled about nearly every aspect of this program.
President Bush told us ``America does not torture'' while authorizing
conduct that America itself has prosecuted as crime and war crime, as
torture.
Vice President Cheney agreed in an interview that waterboarding was
like ``a dunk in the water'' when it was actually a technique of
torture from the Spanish Inquisition to Cambodia's killing fields.
John Yoo, who wrote the original torture opinions, told Esquire
magazine that waterboarding was only done three times. Public reports
now indicate that just two detainees were waterboarded 83 times and 183
times. Khalid Shaikh Mohammed reportedly was waterboarded 183 times. A
former CIA official had told ABC News: ``KSM lasted the longest on the
waterboard--about a minute and a half--but once he broke, it never had
to be used again.''
We were told that waterboarding was determined to be legal, but we
were not told how badly the law was ignored and manipulated by the
Department of Justice's Office of Legal Counsel, nor were we told how
furiously government and military lawyers tried to reject the defective
OLC opinions.
We were told we couldn't second guess the brave CIA officers who did
this unpleasant duty, and then we found out that the program was led by
private contractors with no real interrogation experience.
Former CIA Director Hayden and former Attorney General Mukasey wrote
that military interrogators need the Army Field Manual to restrain
abuse by them, a limitation not needed by the experienced experts at
the CIA.
Let's look at that. The Army Field Manual is a code of honor, as
reflected by General Petraeus' May 10, 2000, letter to the troops in
Iraq. He wrote this:
Some may argue that we would be more effective if we
sanctioned torture or other expedient methods to obtain
information from the enemy. They would be wrong. . . . In
fact, our experience in applying the interrogation standards
laid out in the Army Field Manual . . . shows that the
techniques in the manual work effectively and humanely in
eliciting information from detainees.
We are indeed warriors. . . . What sets us apart from our
enemies in this fight, however, is how we behave. In
everything we do, we must observe the standards and values
that dictate that we treat noncombatants and detainees with
dignity and respect.
Military and FBI interrogators, such as Matthew Alexander, Steve
Keinman, and Ali Soufan, it appears, are the true professionals. We
know now that the ``experienced interrogators'' referenced by Hayden
and Mukasey had actually little to no experience.
Philip Zelikow, who served in the State Department under the Bush
administration, testified in a subcommittee that I chaired. He said the
CIA ``had no significant institutional capability to question enemy
captives'' and ``improvised'' their program of ``cooly calculated
dehumanizing abuse and physical torment.'' In fact, the CIA cobbled its
program together from techniques used by the SERE Program, designed to
prepare captured U.S. military personnel for interrogation by tyrant
regimes who torture not to generate intelligence but to generate
propaganda.
Colonel Kleinman submitted testimony for our hearing, in which he
stated:
These individuals were retired military psychologists who,
while having extensive experience in SERE (survival, evasion,
resistance, and escape) training, collectively possessed
absolutely no firsthand experience in the interrogation of
foreign nationals for intelligence purposes.
To the proud, experienced, and successful interrogators of the
military and the FBI, I believe Judge Mukasey and General Hayden owe an
apology.
Finally, we were told that torturing detainees was justified by
American lives saved--saved as a result of actionable intelligence
produced on the waterboard. That is the clincher, they stay--lives
saved at the price of a little unpleasantness. But is it true? That is
far from clear.
FBI Director Mueller has said he is unaware of any evidence that
waterboarding produced actionable information. Nothing I have seen
convinces me otherwise. The examples we have been able to investigate--
for instance, of Abu Zubaida providing critical intelligence on Khalid
Shaik Mohammed and Jose Padilla--turned out to be false. The
information was obtained by regular professional interrogators before
waterboarding was even authorized.
As recently as May 10, our former Vice President went on a television
show to relate that the interrogation process we had in place produced
from certain key individuals, such as Abu Zubaida--he named him
specifically--actionable information. Well, we had a hearing inquiring
into that, and we produced the testimony of the FBI agent who actually
conducted those interrogations.
Here is what happened. Abu Zubaida was injured in a firefight and
captured in Afghanistan. He was flown to an undisclosed location for
interrogation. The first round of interrogation conducted
professionally by Soufan and his assistant from the CIA produced such
significant intelligence information that a jet with doctors on it was
scrambled from Langley--from this area--and flown to the undisclosed
location so that the best medical care could be provided to Abu Zubaida
so he could continue to talk. That was the first round of information.
In the second interrogation, conducted consistent with professional
interrogation techniques, Abu Zubaida disclosed that the mastermind of
the
9/11 attacks was Khalid Shaik Mohammed. That may be the apex piece of
intelligence information we have obtained during the course of the
conflict.
At that point, the private contractors arrived, and for some reason
Abu Zubaida was handed over to them so they could apply their enhanced
interrogation techniques. Ali Soufan testified that at that point they
got no further information. What triggered the first round of
information was that Soufan knew about Zubaida's pet name that his
mother used for him. When he used that nickname, Zubaida fell apart. He
didn't know how to defend himself, and he began to disclose this very
important information.
Knowledge, outwitting people, playing on mental weaknesses, taking
advantage of our skills as Americans--that is what worked and got the
information about Mohammed. He was
[[Page S6361]]
turned over to the private contractors for enhanced techniques and they
got nothing.
It was then determined that because the interrogation had become
unproductive, he should be returned to the FBI agent and CIA agent who
had twice interrogated him. It was in the third round that he disclosed
information about Jose Padilla, the so-called dirty bomber, which was
so important that Attorney General Ashcroft held a press conference, I
believe in Moscow, to celebrate the discovery of this information.
Again, for some reason, he was turned back again to the private
contractors for the application of more abusive techniques, and again
the flow of information stopped.
For a third time, he was returned to the FBI and CIA agents again for
professional interrogation, but by now he had been so compromised by
the techniques, even they were unsuccessful in getting further
information.
As best as I have been able to determine, for the remaining sessions
of 83 waterboardings that have been disclosed as being associated with
this interrogation, no further actionable information was obtained. Yet
the story has been exactly the opposite. The story over and over has
been that once you got these guys out of the hands of the FBI and the
military amateurs and into the hands of the trained CIA professionals,
who can use the tougher techniques, that is when you get the
information. In this case, at least, the exact opposite was the truth,
and this was a case cited by the Vice President by name.
The costs of this could be high. There has been no accounting of the
wild goose chases our national security personnel may have been sent on
by false statements made by torture victims seeking to end their agony;
no accounting of intelligence lost if other sources held back from
dealing with us after our dissent into what Vice President Cheney
refers to as the ``dark side''; no accounting of the harm to our
national standing or our international good will from this program; no
accounting of the benefit to our enemies' standing--particularly as
measured in militant recruitment or fundraising; and no accounting of
the impact this program had on information sharing with foreign
governments whose laws prohibit such mistreatment.
At the heart of all these falsehoods lies a particular and specific
problem: The ``declassifiers'' in the U.S. Government are all in the
executive branch. No Senator can declassify, and the procedure for the
Senate as an institution to declassify something is so cumbersome that
it has never been used. Certain executive branch officials, on the
other hand, are at liberty to divulge classified information. When it
comes out of their mouth, it is declassified because they are
declassified. Its very utterance by those requisite officials is a
declassification. What an institutional advantage. The executive branch
can use, and has used, that one-sided advantage to spread assertions
that either aren't true at all or may be technically true but only on a
strained, narrow interpretation that is omitted, leaving a false
impression, or that sometimes simply supports one side of an argument
that has two sides--but the other side is one they don't want to face
up to and don't declassify.
One can hope the Obama administration will be more honorable. I
suspect and believe they will be. But the fact is that a cudgel that so
lends itself to abuse will some day again be abused, and we should find
a way to correct that imbalance. It is intensely frustrating to have
access to classified information that proves a lie and not be able to
prove that lie. It does not serve America well for Senators to be in
that position.
Chairman Levin has already done excellent work in the Armed Services
Committee, and there is no reason to believe that good work won't
continue. Chairman Rockefeller has done excellent work in the
Intelligence Committee, and his successor, Senator Feinstein, has
picked up the mantle and continues forward with energy and
determination. We can be proud of what she is doing. Chairman Leahy has
begun good work in the Judiciary Committee, and more will ensue when we
see the report of the Department of Justice Office of Professional
Responsibility about what went wrong in the Office of Legal Counsel.
The new administration, I hope and expect, is itself drilling down to
the details of this sordid episode and not letting themselves be fobbed
off with summaries or abridged editions. In short, a lot is going on,
and a lot should be going on.
While it is going on, I want my colleagues and the American public to
know that measured against the information I have been able to gain
access to, the story line we have been led to believe--the story line
about waterboarding we have been sold--is false in every one of its
dimensions.
I ask that my colleagues be patient and be prepared to listen to the
evidence when all is said and done before they wrap themselves in that
story line.
I thank the Presiding Officer. I know the hour is late. I appreciate
his courtesy.
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